Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FVA025452 and related petition for writ of habeas corpus, Stephan G. Saleson, Judge.
McDONALD, J.
A jury convicted Thomas Grajeda, Jr., of one count of attempted premeditated murder (Pen. Code, § 664/187, subd. (a), count 1) and one count of carrying a loaded firearm (§ 12031, subd. (a)(1), count 2). The jury found true, in connection with count 1, that Grajeda (1) personally used a firearm within the meaning of section 12022.53, subdivision (b); (2) personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); (3) personally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d); and (4) committed the offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). The jury also found true that, at the time Grajeda committed the offense alleged in count 2, he was an active participant in a criminal street gang (§ 186.22, subd. (a)).
All further statutory references are to the Penal Code unless otherwise specified.
In a bifurcated proceeding, the court found true the allegations against Grajeda that he had suffered three prior convictions under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court sentenced Grajeda to an indeterminate term of 45 years to life on count 1, a consecutive indeterminate term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), and a concurrent indeterminate term of 25 years to life for the conviction on count 2.
On appeal, and in his related petition for writ of habeas corpus, Grajeda asserts: (1) he was denied effective assistance of counsel; (2) the trial court abused its discretion when it denied his motion for new trial; (3) the evidence was insufficient to support the gang benefit enhancement allegation appended to count 1 or the gang participation allegation appended to count 2; (4) the court abused its discretion by not dismissing the allegation of Grajeda's prior strikes; (5) the use of Grajeda's prior felony convictions from former cases to impose a three strikes sentence violated the terms of Grajeda's plea bargains in the former cases; (6) Grajeda was not provided proper presentence custody credits under section 4019; and (7) the court erred by imposing a restitution fine without considering Grajeda's ability to pay that fine. The appeal and writ of habeas corpus have been consolidated for purposes of decision.
I
FACTS
A. Prosecution Evidence on Underlying Offenses
The Shooting
Shannan Baird met Grajeda in September 2005 and, shortly thereafter, they began living together in various hotels. On September 22, 2005, they moved into a Best Western Hotel in Rialto, California, registering under Baird's mother's name.
Amir Hameed, the victim of Grajeda's assault, was employed as a security guard at the hotel during this period and wore a uniform but was unarmed while patrolling the premises. Over the course of the next two days after Baird and Grajeda checked in, Hameed encountered Grajeda a few times and they exchanged brief greetings. Hameed did not think he and Grajeda had any problems.
Hameed first saw Grajeda when Baird checked into the hotel with him. Hameed was leaving the lobby when he noticed Grajeda, who was parking his truck, was staring at him. Hameed did not feel comfortable about the way Grajeda was looking at him, but ignored him and continued patrolling the hotel. Hameed next saw Grajeda in a back parking lot during Hameed's patrol of that area; Grajeda got out of his car and asked, "What's up, " and Hameed responded, "What's up with you? Just doing my job, " and Grajeda responded, "I don't want no problems, " and Hameed responded that he also wanted no problems.
On the night of September 24, 2005, the hotel manager sent Hameed to Baird and Grajeda's room to discuss their telephone bill. Hameed went to their room, knocked on the door and, when Baird answered, informed her about the telephone bill. Hameed waited outside the room while Baird telephoned the office and discussed the bill. While Hameed waited, Grajeda walked into the room but did not address him. Shortly after Baird hung up, the manager contacted Hameed and told Hameed the situation had been resolved. Hameed then left.
Later that evening, sometime before midnight, Hameed was sitting in his car in the hotel parking lot when he saw Baird and Grajeda get into their truck and begin to drive away. Hameed could hear Grajeda and Baird arguing and yelling. Grajeda, who was driving the truck, stopped the truck about 25 feet from Hameed's parked car, got out of the truck and walked toward Hameed. Hameed stepped out of his car and was about three to four feet from Grajeda. Hameed did not then see a weapon.
Grajeda appeared upset with Hameed and accused him of going into Grajeda's room. Hameed, who interpreted Grajeda's remarks as accusing him of having a relationship with Baird, denied going into Grajeda's room, and then turned towards Baird and yelled to her, "Do I know you" or "Did you see me go in the room." Baird answered "I don't know anything, " and then rolled up her window. When Hameed turned back, he saw Grajeda holding a gun and raising it toward Hameed. Hameed heard a single gunshot and felt he had been hit in the right upper chest. However, he was able to make his way to the office and call 911. Hameed was transported to the hospital, where he was treated for a gunshot wound to his chest.
Baird testified at trial. She testified that, after hearing a single gunshot, she told Grajeda, "Let's get back in the truck and go." Grajeda came back to the truck, got into the driver's seat, and drove away. At some point after Grajeda returned to the truck, Baird noticed a small handgun, wrapped in a blue bandana, in the center console between the driver and passenger seats. This was the first time she had seen Grajeda in possession of a gun.
Baird had entered a plea agreement in which she pleaded guilty to violating section 32 and received a sentence of 180 days in County Jail. She admitted at trial that she was under the influence of methamphetamine at the time of the shooting but she was alert and remembered everything about the incident. She also admitted that her trial testimony, although consistent with her statement to police, was not consistent with her testimony at Grajeda's preliminary hearing. She claimed she had not been forthcoming at the preliminary hearing because Grajeda was the father of her child and because she was afraid of him. He twice had tried to convince Baird to say nothing about the shooting, the most recent time being the morning she testified at trial.
Grajeda drove onto the freeway and, after approximately 10 minutes, he exited the freeway and stopped the truck. They got out and briefly discussed what they were going to do, and then Baird got into the driver's seat and Grajeda got into the passenger's seat, and they resumed driving on the freeway. After approximately 10 minutes, Grajeda told Baird to drop him off at the next exit. She exited the freeway and dropped Grajeda off. Baird then drove around for five to 10 minutes before she returned to where she had dropped Grajeda off; however, he was no longer there. As she continued to drive along the surface streets, she threw the gun out the window. She then drove back to the hotel and went into her room, where she waited until 11:30 a.m. the next day when police came to her room.
The Identification
Rialto Police Officer Quarker responded to a 12:15 a.m. call regarding a shooting at the hotel. Hameed told Quarker that he had been shot. Hameed could not give a detailed physical description of the shooter, but did say the shooter was a Hispanic male and mentioned Room 218, and Quarker learned that room had been registered to Baird. Around 10:00 a.m. on the morning following the shooting, Rialto Police Officer Park responded to a call from the hotel manager. The manager told Park the woman occupying room 218 had returned and her truck was parked in the hotel parking lot. Park knocked on the door and Baird answered. Park requested and obtained Baird's permission to search her truck. Park found four photographs, two of which depicted three Hispanic males and two of which depicted a single Hispanic male.
Room 218 was the room rented to Baird under her mother's name.
Baird was initially uncooperative about the identity of the man staying with her in the room, and said nothing when asked if she knew the persons depicted in the photographs. However, she eventually told Park that "Tommy" was the name of her companion. Park took the photographs to the hospital and showed them to Hameed. Hameed pointed to a shirtless individual with "Grajeda" tattooed across his stomach. Park asked dispatch for a records search for "Tommy Grajeda, " and dispatch located a record for Tomas Grajeda.
Park obtained a photograph of Grajeda from the California I.D. base and put it into a photographic lineup Park showed to Hameed. Hameed positively identified Grajeda in the lineup as the shooter. Park also compiled a photographic lineup that included Baird's photograph, and Hameed again positively identified Baird as the shooter's companion. Park subsequently met with Baird, who gave him a statement. She also went with Park to the area where she had tossed the gun but police were unable to find it. Police also obtained nine fingerprints from Baird's truck, one of which was identified as that of Grajeda.
B. Prosecution Evidence on Gang Issues
The Searches of Grajeda's Property
In April 2006 Grajeda's jail cell was searched. The investigator seized nine separate 2006 newspaper articles concerning gang activities, two of which had handwriting on them. One article, concerning federal legislation targeting gangs, had the word "Sureño" written on it, and the Aztec symbol for the number 13 (two lines and three small dots under the lines) was drawn next to "Sureño." A second article also had the word "Sureños" written on it.
In July 2007 another investigator searched Grajeda's property. The investigator seized cards Grajeda received from Baird, and a handmade address book that had "original gangster, " "HA-LA" and "'213'" on the cover. The investigator testified "213" was the area code for the Harbor area of Los Angeles County.
Gang Expert Moreno
Guillermo Moreno, a California Department of Corrections employee, testified as an expert concerning prison gangs. His testimony covered numerous subjects, including the structure and operational methods of, and the methods by which a person became a member or associate in, the "Mexican Mafia, " and Grajeda's relationship to the Mexican Mafia.
Moreno's qualifications as an expert are not contested on appeal.
Moreno explained the Mexican Mafia (also referred to as "Eme" or "La Eme") is one of the primary gangs seeking to control criminal activity inside prisons. The principal activity the Mexican Mafia seeks to control is the lucrative narcotics trade, but it also engages in violent crimes to maintain power over a prison. Its ability to maintain power and control is based partly on the money it obtains and is also based on instilling fear and intimidation. There are between 160 to 170 documented Mexican Mafia "members" and another approximately 1400 "associates" in the California prison system. A member holds more power than an associate, because the member does not need authority from anyone to do anything, and can issue orders to others. Although members have relatively equivalent powers, there is an informal hierarchy among members, who can obtain more power based on the length of time spent in prison, and on the ability to garner support from the Sureños. A Sureño is a soldier for the Mexican Mafia who was a loyal local street gang member from the Southern California area willing to "do work" for the Mexican Mafia.
A Mexican Mafia member profits because he receives a portion of the revenue generated by narcotics sales, both inside the prison controlled by that gang as well as narcotics sales by outside street gangs under its control. A member exercises control over outside local gangs by deputizing a gang member to act on his behalf and to carry out his orders in the criminal enterprise. The outside deputy will carry out the orders and deliver profits back to the controlling member inside the prison.
To join the Mexican Mafia, an individual is required to have proven a willingness to commit crimes outside of prison from a young age. Approximately 99 percent of Mexican Mafia members or associates were from local street gangs. They become more powerful based on, among other factors, the length of time in prison and the number of troops (Sureños) they are able to control.
Prison officials attempt to determine (or "validate") whether a particular individual is a member or associate of the Mexican Mafia to remove and isolate that individual from other prisoners. Grajeda's father, Tomas Grajeda (whose gang moniker is "Wino"), is a validated Mexican Mafia member incarcerated at Pelican Bay State Prison's security housing unit. Moreno reviewed Grajeda's prison file and determined Grajeda's gang moniker is "Little Wino." Moreno also examined Grajeda's tattoos, and stated (1) the tattoo "Sur" reflected a declaration that Grajeda was a Sureño for the Mexican Mafia, (2) the tattoo of a frog and the words "La Rana" (as well as his tattoos referring to the geographic areas of "Harbor Area" and "Del Amo Boulevard") were declarations of his affiliation with a local street gang. Grajeda's prison file reflected he was first validated as a Mexican Mafia associate in 1992 based, in part, on Grajeda's contact with Joe Morgan, an influential early member of the Mexican Mafia. Moreno also stated that Grajeda remained an active gang member, because "Sureño" notations on the newspaper articles seized from Grajeda reflected current gang affiliation, and the Aztec symbol for the number 13 is used to symbolize affiliation with the Mexican Mafia. Moreno also stated the notations on the address book referred to Grajeda's continuing affiliation with his gang.
Gang Expert Martinez
Mike Martinez, a detective with the gang unit of the San Bernardino Sheriff's Department, also testified as an expert concerning gangs. His testimony covered numerous subjects, including the relationship of the Mexican Mafia with local street gangs, and how crimes of violence benefit a gang and its members.
Martinez's qualifications as an expert are not contested on appeal.
Martinez also testified about the requisite predicate offenses by Mexican Mafia members. The gang enhancement under section 186.22, subdivision (b), with which Grajeda was charged, required proof of a criminal street gang within the meaning of section 186.22, subdivision (f), which in turn required proof the gang engaged in a "pattern of criminal gang activity." (§ 186.22, subd. (f).) The term "pattern of criminal gang activity" required proof that gang members committed "one or more" of the predicate offenses (ibid.; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 323) enumerated in section 186.22, subdivision (e). Similarly, count 2 specially alleged (pursuant to § 12031, subd. (a)(2)(C)) that, at the time Grajeda was armed with a firearm, he was an active participant in a criminal street gang within the meaning of section 186.22. Accordingly, the charge contained in count 2 likewise required proof of Grajeda's membership in a criminal street gang within the meaning of section 186.22, subdivision (f).
The Mexican Mafia controls local street gangs and requires them to pay a "tax" on narcotics revenue they receive, and enforces that control by violent retaliation against local gangs that do not pay the tax or carry out its orders. Additionally, becoming a member or associate in the Mexican Mafia is viewed as prestigious by local gang members. If a local gang member has "put in work" for the Mexican Mafia and then is imprisoned, he can become an associate. If he is thereafter released and continues to demonstrate his willingness to "put in work, " he can be "spoken for" by a member of the Mexican Mafia, which gives him the authority and power to oversee the activities of local gang members on behalf of the imprisoned Mexican Mafia member. Additionally, a local street gang's reputation is enhanced when a former member becomes an associate in the Mexican Mafia, and although that former member may resume activity with (or indeed control) the local street gang after he is released, the former member's allegiance is to the Mexican Mafia and he will ensure that the orders of the Mexican Mafia are carried out.
Martinez stated Grajeda's reputation, and that of the Mexican Mafia, was enhanced by Grajeda shooting someone. Martinez explained that violence is one of the ways the Mexican Mafia maintains control over other gangs, and when an associate of the Mexican Mafia commits an act of violence, it reminds other gangs of the willingness of the Mexican Mafia to act violently. Violence by Mexican Mafia associates also acts to instill fear in gang members (as well as non-gang members) to deter them from cooperating with authorities trying to investigate and prosecute crimes involving the Mexican Mafia network.
Martinez also stated a member or associate of the Mexican Mafia could not tolerate disrespect from anyone, whether the offending party was another gang member or a third party, because tolerating disrespect from others causes a loss of prestige and diminishes the power of the gang member. A person who intruded into the abode of a Mexican Mafia associate without being invited, or a man perceived to be acting in an overly friendly manner toward the girlfriend of a Mexican Mafia associate, could be seen as being disrespectful toward the associate. The expert agreed that the type of crime committed here, insofar as it "may have arisen out of disrespect[, ] would... benefit the Mexican Mafia."
C. The Defense Evidence
The Underlying Offenses
Grajeda denied that he had a gun or that he shot Hameed. Grajeda met Baird one to two weeks before the shooting incident, and they stayed at the hotel together. When they first checked in, Grajeda saw Hameed standing outside and staring at them. Grajeda asked Hameed "What's up? Are you eye-fucking me, or what?" Hameed replied "I am just doing my job." Grajeda did not see Hameed again until he came to their room about the telephone bill.
On rebuttal, gang expert Moreno testified that "eye-fucking" or "mad-dogging" (which involves looking at someone too long) was viewed as disrespectful in gang culture, and that there were cases of extreme violence being employed as retribution for something as simple as looking at someone too long.
After the telephone bill incident, Baird told Grajeda she felt uncomfortable and wanted to leave the hotel. Later that evening, they got into Baird's truck and began to drive away but, as Grajeda drove by the dumpster, Grajeda saw Hameed sitting in his car. Hameed appeared to be holding his hand over his mouth as if he were laughing, and waving. Grajeda stopped the truck, got out, and approached Hameed's car. Hameed got out, and Grajeda (who believed he had seen a uniformed person earlier that evening coming out of their room) asked, "What were you doing coming out of my room?" Hameed denied he had been in their room, and said it was "bullshit." This angered Grajeda because he thought Hameed was calling him a liar, so he punched Hameed in the face. Grajeda then got into the truck and drove away.
The Gang Allegations
Grajeda admitted he had been a member of La Rana (a Torrance area gang) when he was very young, but had moved away from the area at 20 or 21 years old. He denied that he had ever "[put] in work" for (or accepted orders from) the Mexican Mafia and, although he admitted he made frequent trips to Arizona to conduct drug sales across state lines, he denied these transactions were gang related. He conceded state officials had "validated" him as involved with the Mexican Mafia, but he believed that occurred because state officials had validated his father, uncles and a cousin as Mexican Mafia members or associates. He also conceded Joe Morgan was an important early member of the Mexican Mafia and that Grajeda had received a letter from him when Grajeda was in custody in 1989, but explained that letter was personal in nature because Morgan was Grajeda's godfather.
Gang expert Moreno testified that Grajeda's running drugs for sale was consistent with the Mexican Mafia's primary criminal activity of selling drugs.
Gang expert Moreno testified that a person who obtains a letter from a Mexican Mafia member can use that letter as his license or proof of authority to act on behalf of the member.
Grajeda explained he got the "Sur" tattoo when he was young and everybody was getting them. Grajeda did not use "Sur" to refer to "Sureño, " but instead used it to mean "supreme united race" to express pride in his ethnic heritage. Similarly, he got the frog tattoo because many male members of his family had the frog tattoo. However, he admitted that the frog tattoo also signified affiliation with the "La Rana" gang, with which he had been involved in his younger years, and admitted the male members of his family validated as affiliated with the Mexican Mafia also had the frog tattoo signifying affiliation with the "La Rana" gang.
Grajeda denied the notations on his telephone book signified gang allegiance. The "HA-LA" on the address book signified the street slang for "ha-la, waz-app." Similarly, he cut out the sticker "Original Gangsta, 213" and put it on the cover because he saw it in a magazine, but it had no gang significance.
Grajeda admitted that, while he was in jail in 2007, he had a telephone conversation with a person (who used the moniker "Criminal") concerning Criminal's supplying drugs to Baird. Grajeda told him not to supply drugs to Baird, and Criminal was respectful towards Grajeda and his wishes. Grajeda also spoke with a cousin and told the cousin that Criminal was "trying to disrespect [Baird], so tell Topo to check that fool."
Authorities were monitoring Grajeda's telephone conversations during this period, and an officer who listened to the tapes said Criminal appeared almost fearful of Grajeda.
II
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Grajeda raises two claims rooted in his assertion that his counsel provided ineffective assistance at trial. First, he argues the trial court abused its discretion when it denied his motion for a new trial. That motion argued his trial counsel was ineffective for not objecting to the admission of two pieces of gang evidence and for not investigating potential attacks on Baird's credibility because of her mental instability and drug use.
Grajeda also asserts, in his appeal and by his related petition for writ of habeas corpus, that he was deprived of effective assistance of counsel and is entitled to reversal on appeal because his trial attorney did not obtain a ruling on Grajeda's pretrial motion to exclude certain gang evidence, and thereafter did not object to admission of the expert testimony on numerous subjects related to the Mexican Mafia.
A. General Legal Standards
Because the underlying predicate for this set of appellate contentions asserts Grajeda's trial counsel was ineffective, we briefly outline the standards relevant to these claims. To establish ineffective assistance of counsel, Grajeda bears the burden of showing both that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and that it is reasonably probable the verdict would have been more favorable to him absent counsel's deficiency. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) "We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) We will reverse on the ground of ineffective assistance of counsel " 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' " (People v. Zapien (1993) 4 Cal.4th 929, 980.) Furthermore, in an appropriate case, we may reject an ineffectiveness claim on the ground of lack of prejudice without determining whether counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697; In re Fields (1990) 51 Cal.3d 1063, 1079.)
B. The New Trial Motion
The Motion and Ruling
Grajeda's motion for new trial argued, among other things, that counsel was ineffective based on three omissions and it was reasonably probable the result would have been different absent these omissions. First, Grajeda claimed his counsel should have objected when gang expert Moreno, questioned about Joe Morgan, was asked whether Morgan might be "known to the general public, " and Moreno responded that there was a movie "kind of depicting the Mexican Mafia called 'American Me'... [¶]... [¶] [and Morgan] was depicted as one of the characters in it." Second, Grajeda argued his counsel should have objected to Moreno's testimony (as inadmissible or as subject to exclusion under Evid. Code, § 352) that Grajeda's father was a validated and currently incarcerated Mexican Mafia member. Finally, Grajeda asserted his counsel should have investigated potential attacks on Baird's credibility because of her mental instability and drug use. Grajeda argued these omissions denied him a fair trial. The prosecution opposed the motion, arguing (1) Grajeda's relationship with Morgan was relevant and the reference to the movie was so de minimus that the decision not to object could have been attributable to a strategy decision, (2) Grajeda's family involvement in the Mexican Mafia was admissible and not seeking to exclude the evidence could have reflected a tactical choice, and (3) trial counsel could have validly determined it was unnecessary to investigate ways to attack Baird's credibility. The trial court denied the motion for new trial. The court concluded trial counsel had acted appropriately, declined to "second guess his tactics and strategies, " concluded trial counsel had provided effective assistance of counsel and the trial was fair.
Legal Standards
Generally, a trial court's ruling on a motion for new trial " ' "rests so completely within [its] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) This standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.) The burden is on the defendant to show the trial court's decision was " 'irrational or arbitrary, ' " or that it was not " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
In addition to the statutory grounds (§ 1181), a new trial may be granted where the trial court finds that the defendant received ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) To prevail, the defendant must show both that counsel's performance was deficient, and the deficient performance " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Andrade (2000) 79 Cal.App.4th 651, 660.) When a claim of ineffective assistance of counsel is made in a new trial motion, we usually defer to the trial court's initial determination as to whether trial counsel's tactical "acts or omissions were those of a reasonably competent attorney." (People v. Jones (1981) 123 Cal.App.3d 83, 89.) The trial court is generally in the best position to make that determination based on having observed counsel's performance throughout the proceedings. (Ibid.) As to the second prong, the defendant must show a "reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Evaluation
The court specifically found Grajeda's trial counsel's performance throughout the trial was not ineffective. In doing so, the court impliedly determined that counsel's tactical acts or omissions were those of a reasonably competent attorney. We defer to that determination, which is supported by the record, because there may have been sound tactical reasons for trial counsel's decisions. A trial court could rationally conclude the decision to refrain from objecting to the "American Me" reference reflected a tactical decision that it was better to ignore a brief reference (rather than to call attention to it by objecting), or that it was better to avoid conveying to the jury the impression that Grajeda was trying to hide his connection to Morgan because that could have undermined his strategy of showing Grajeda's connection to Morgan was benign. "The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent." (People v. Lucas (1995) 12 Cal.4th 415, 444.) Similarly, a trial court could rationally conclude the decision to refrain from interposing an Evidence Code section 352 objection to the fact Grajeda's father was a validated member of the Mexican Mafia may have reflected a tactical decision that it was better to avoid conveying to the jury the impression that Grajeda was trying to hide his family's connections to that gang, which could have undermined his strategy of asserting he had shed the follies of youth and was not a gang member.
Although Grajeda suggests on appeal the evidence was excludable as inadmissible, the prosecution was obliged to prove Grajeda was a gang member, both for the enhancement appended to count 1 and for the crime alleged in count 2, and the fact many of Grajeda's male family members had achieved membership in that gang, and that an influential early member of that gang had been selected as Grajeda's godfather, was probative of whether Grajeda was associated with that gang. A relevance objection would appear to have been futile, and an attorney has no duty to make a futile request and does not render ineffective assistance of counsel by not doing so. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
Grajeda also claims counsel should have investigated Baird's mental health issues to show her testimony was open to doubt due to mental illness. However, Baird did testify regarding her mental health issues, both on direct examination and on cross-examination, and additional information would have been cumulative. More importantly, a trial court could well conclude the defense made a tactical decision not to examine Baird on whether her diminished mental acuity made her testimony merely mistaken, because that could have detracted from defense strategy of attacking her as a liar. On this record, we cannot conclude the trial court's decision to deny a new trial on the grounds stated in Grajeda's motion was so irrational or arbitrary to amount to an abuse of discretion.
The defense argued the jury should disbelieve her because her trial testimony was inconsistent with her preliminary hearing presentation, and she was motivated by her plea bargain with the prosecutor and other pending charges to slant the facts in favor of the prosecutor.
C. Ineffective Assistance Claim
Grajeda's appeal and related petition for writ of habeas corpus argues his trial attorney was ineffective because the attorney (1) did not obtain a ruling on Grajeda's pretrial "motion" to exclude certain gang evidence, and (2) did not object to admission of the expert testimony on numerous subjects related to the Mexican Mafia.
Background
Grajeda, while representing himself in propria persona, filed several pretrial motions, including a motion titled "Motion... to Evict the Information and Testimony Used to Allege Gang Related Enhancements" and his "Points and Authorities in Support of Motion to Evict and to Exclude Gang Testimony Used To Allege Gang Enhancements." At the April 29, 2008, hearing on Grajeda's motions, the court sought to clarify whether Grajeda was moving to dismiss the gang allegation. Grajeda confirmed that was what he was seeking. The prosecutor argued, assuming the motion sought to dismiss under section 995, there was sufficient evidence to support the gang allegations. The court, after stating it understood the motion as a motion to dismiss under section 995 and after confirming with Grajeda that he was challenging whether there was enough evidence to hold him to answer for the gang allegations, stated it would be necessary to review the transcripts of the preliminary hearing to determine whether there was adequate evidence to support the information. Grajeda later stated that he wished to relinquish his pro per status and obtain counsel, and the court appointed counsel and continued the matter to allow confirmation of counsel.
Grajeda's motion was not entirely clear. The motion stated it sought to "[evict] the People[']s use of a 'Prison Validation 128-B-2 Chrono' and any other information [derived] therefrom to allege gang related enhancements, " and stated "the evidence used at the preliminary hearing was insufficient at face, " and the prayer for relief asked the court to "set aside the alleged gang related enhancements and exclude testimony in relation [thereto] for... lack of evidence, " suggesting the motion sought relief under section 995. However, the motion also stated Grajeda sought "to exclude any testimony in [regard] to the alleged gang related charges."
On July 3, 2008, the parties appeared to commence trial. At that time, the court confirmed the gang allegations were triable issues in the proceeding.
Evaluation
Grajeda asserts counsel was ineffective because counsel did not obtain an explicit ruling on his pretrial motion. However, the court impliedly denied Grajeda's section 995 motion by confirming, at the commencement of trial, that the gang allegations were triable issues in the proceeding. More importantly, Grajeda has made no showing on appeal that there was a "reasonable probability that [he] would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) Neither Grajeda's brief nor his petition for writ of habeas corpus has made any effort to show how the evidence at the preliminary hearing was so deficient that, had counsel pressed for an explicit ruling on Grajeda's motion to dismiss under section 995, there was a reasonable probability the court would have granted the motion and dismissed the gang allegations.
Grajeda's principal argument is that his attorney was ineffective because the attorney did not object to admission of the expert testimony on a variety of subjects related to the Mexican Mafia. Grajeda complains about the following information presented at trial: (1) prison gangs can control an entire prison and the Mexican Mafia has a great deal of power in the prison system; (2) a Mexican Mafia member can issue orders and people will comply for fear of retribution; (3) a Sureño is a gang member loyal to the Mexican Mafia who will commit crimes on its behalf; (4) the Mexican Mafia controls local street gangs and taxes their drug revenues; (5) imprisonment is a prerequisite to admission into the Mexican Mafia; (6) prison inmates are validated as a member of a prison gang using criteria contained in the California Code of Regulations and Grajeda was validated in 1992 as an associate of the Mexican Mafia based in part on his relationship with Joe Morgan, and that validation has never been removed; (7) Grajeda's father was also validated as a Mexican Mafia member and is currently imprisoned; and (8) investigations in cases involving the Mexican Mafia are difficult because witnesses will not cooperate because of fear of the Mexican Mafia. Grajeda does not suggest either that the foregoing evidence was irrelevant to proving the gang allegations, or that these were subjects outside the scope of the type of evidence the courts have concluded a gang expert may provide. Instead, Grajeda asserts the evidence should have been excluded under Evidence Code section 1101, subdivision (a), and/or Evidence Code section 352, and therefore trial counsel's failure to interpose those objections violated Grajeda's right to effective assistance of counsel.
Grajeda first argues that one segment of the information—he was validated as an associate of the Mexican Mafia while imprisoned—implied he had been convicted of other crimes for which he was not on trial. Grajeda, citing the general rule that other crimes evidence is subject to exclusion under Evidence Code section 1101, subdivision (a) (see generally People v. Guerrero (1976) 16 Cal.3d 719, 724), argues his trial attorney was prejudicially ineffective for not objecting to the evidence of his imprisonment. However, once Grajeda made the strategic decision to testify, the "other crimes" evidence was admissible in any event (and was in fact admitted) to impeach his credibility. (See People v. Williams (2009) 170 Cal.App.4th 587, 607.) More importantly, even had he elected not to testify, the gang allegations would (under the peculiar facts of this case) have necessitated a discussion of Grajeda's prison experience. Evidence Code section 1101, subdivision (a), excludes evidence of other crimes when such evidence is "offered to prove his or her conduct on a specified occasion." However, Evidence Code section 1101, subdivision (b), provides an exception to that general rule of exclusion, stating: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact... other than his or her disposition to commit such an act." Thus, subdivision (b) clarifies that the general rule of exclusion of character evidence "does not prohibit admission of evidence of [prior acts] when such evidence is relevant to establish some fact other than the [defendant's] character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted.)
Here, the prosecution alleged Grajeda was a participant in a criminal street gang, and sought to prove the specific gang in which Grajeda participated was the Mexican Mafia. Because the expert explained one of the prerequisites for admission into that gang was that the prospective gang member had been imprisoned, the fact Grajeda met that criterion was "relevant to prove some fact" other than Grajeda's criminal disposition, and was therefore not barred by Evidence Code section 1101. Accordingly, counsel was not ineffective for failing to interpose an objection under Evidence Code section 1101.
Grajeda alternatively argues the gang evidence was inflammatory and should have been excluded under Evidence Code section 352. However, because it was incumbent on the prosecution to prove the Mexican Mafia was a street gang, Grajeda belonged to the Mexican Mafia, and to also attempt to prove Grajeda's attempt to murder was for the benefit of that gang, expert testimony on the nature, structure, operation, culture and habits of the Mexican Mafia was properly admitted to aid the jury to reach a finding on a gang allegation. (See, e.g., In re Frank S. (2006) 141 Cal.App.4th 1192, 1196, (Frank S.).) Expert testimony about gang culture and habits may include, but is not limited to, testimony about the size, composition or existence of a gang; gang turf or territory; an individual defendant's membership in, or association with, a gang; the primary activities of a specific gang; motivation for a particular crime, generally retaliation or intimidation; whether and how a crime was committed to benefit or promote a gang; rivalries between gangs; and gang-related tattoos, graffiti, hand signs, colors, or attire. (Id. at p. 1197; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.) Although the expert evidence may have been damaging, the exclusion of damaging evidence is not the office of Evidence Code section 352. " 'In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) The "undue prejudice" with which Evidence Code section 352 is concerned is "not... evidence that proves guilt, but... evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' " ' " (People v. Walker (2006) 139 Cal.App.4th 782, 806.) Although the expert evidence may have damaged Grajeda's denial of his gang membership, that is no basis for exclusion under Evidence Code section 352. Accordingly, his trial counsel was not ineffective for not interposing an Evidence Code section 352 objection to evidence that was highly probative of the gang allegations against Grajeda.
Grajeda's reply brief cites People v. Albarran (2007) 149 Cal.App.4th 214 in support of his claim that an Evidence Code section 352 objection would have limited the gang evidence in this case. However, the Albarran court criticized as "overkill" the evidence in that case, and specifically the evidence "of threats to kill police officers, descriptions of the criminal activities of other gang members, and reference to the Mexican Mafia" (Albarran, at p. 228) because such evidence was "extremely inflammatory" (id. at p. 227) while having "little or no bearing on any other material issue" in that case. (Id. at p. 228.) However, unlike Albarran, evidence concerning the Mexican Mafia was relevant here precisely because its status as a criminal street gang, and Grajeda's involvement, undergirded the gang allegations of this case. Additionally, its control over narcotics trafficking outside of prison was germane because Grajeda admitted he engaged in narcotics trafficking while outside of prison, from which a jury might infer his gang participation was ongoing at the time of the offenses. Finally, although Grajeda complains the witness-intimidation evidence was irrelevant, he ignores that Baird originally declined to inculpate Grajeda in her testimony at his preliminary hearing, and the prosecution could well have relied on the witness-intimidation evidence to explain why that version was less reliable than that she provided at trial.
Grajeda finally argues his trial counsel was ineffective because he did not object to the expert's use of the prison validation packet to testify that Grajeda was an associate of the Mexican Mafia as early as 1992. However, he cites no pertinent authority that would preclude an expert from relying on a prison validation packet to testify on Grajeda's membership in the gang, and experts are generally permitted to rely on hearsay to testify on a defendant's gang status. (See generally People v. Valdez (1997) 58 Cal.App.4th 494, 504-507.) Accordingly, any objection would have been futile.
Although Grajeda cites three federal cases (Toussaint v. McCarthy (9th Cir. 1986) 801 F.2d 1080; Cato v. Rushen (9th Cir. 1987) 824 F.2d 703; Kyle v. Hanberry (11th Cir. 1982) 677 F.2d 1386, 1390) purporting to question the validity of California's prison gang validation process, none of those cases address the procedures and standards for gang validation under title 15, California Code of Regulations section 3378. Although Grajeda also cites Bruce v. Ylst (9th Cir. 2003) 351 F.3d 1283 to support his claim, that case actually rejected the inmate's due process claim and held the determination of the inmate's gang status under the administrative procedures was properly reached and supported by adequate evidence. (Id. at pp. 1287-1288.)
Conclusion
We conclude Grajeda was not denied effective assistance of counsel because there is no reasonable probability he would have obtained a more favorable result had his trial attorney interposed the evidentiary objections Grajeda claims should have been raised.
III
INSUFFICIENT EVIDENCE CLAIMS
Grajeda contends the evidence is insufficient to support the gang allegation findings. Because our conclusion on sufficiency of the evidence on the gang allegation appended to count 2 differs from our conclusion on sufficiency of the evidence on the gang enhancement appended to count 1, we examine each separately.
A. General Principles
When a criminal defendant challenges the sufficiency of the evidence on appeal, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
We apply the same deferential standard to determine the sufficiency of the gang enhancement evidence (People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Killebrew, supra, 103 Cal.App.4th at p. 660) as well as convictions based largely on circumstantial evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, credible and of solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518.)
B. The Gang Allegation Appended to Count 2
Carrying a loaded firearm in a public place is generally a misdemeanor. (§ 12031, subd. (a)(1), (2)(G).) However, "[t]he crime elevates to a felony if certain conditions are met. One such condition is '[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22....' " (People v. Lamas (2007) 42 Cal.4th 516, 522.) In People v. Robles (2000) 23 Cal.4th 1106, the court noted that "[c]ontrary to the express language of section 12031[, subdivision] (a)(2)(C), however, subdivision (a) of section 186.22... does not at all define the statutory phrase 'an active participant in a criminal street gang.' " (Id. at p. 1111.) Because one of the elements of section 186.22, subdivision (a), is "active... participa[tion] in any criminal street gang, " which requires that the "defendant's involvement with the gang is more than nominal or passive" (People v. Castenada (2000) 23 Cal.4th 743, 745), the Robles court construed "section 12031[, subdivision] (a)(2)(C)'s phrase 'active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22' as referring to the substantive gang offense defined in section 186.22[, subdivision] (a)." (Robles, at p. 1115.)
Robles concluded, as a matter of statutory interpretation, that "carrying a loaded firearm in public becomes a felony under section 12031[, subdivision] (a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22[, subdivision] (a). Those elements are 'actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and 'willfully promot[ing], further[ing], or assist [ing] in any felonious criminal conduct by members of that gang.' (§ 186.22[, subd.] (a).)" (People v. Robles, supra, 23 Cal.4th at p. 1115.) We therefore evaluate whether there is substantial evidence that Grajeda actively participated in any criminal street gang, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and had willfully promoted, furthered, or assisted in any felonious criminal conduct by members of that gang, and that these conditions existed at or reasonably near to the time (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509) Grajeda committed the underlying offense of carrying the loaded firearm.
There is some evidence from which a jury could have found each of the section 186.22, subdivision (a), elements were present. Grajeda's participation in the Mexican Mafia was shown by his prison validation packet (and by the expert testimony that participants in the Mexican Mafia do not easily withdraw from their participation), by Grajeda's tattoos, and by his possession of articles concerning gangs that had notations (e.g. the word "Sureño" and the Aztec symbol for the number 13) associated with the Mexican Mafia. Grajeda's knowledge that Mexican Mafia participants engage in or have engaged in a pattern of criminal gang activity could be inferred from his extensive family ties to that organization. Finally, a jury could have found Grajeda willfully promoted, furthered, or assisted in felonious criminal conduct by members of that gang because there was expert testimony that a principal activity of the Mexican Mafia was narcotics trafficking conducted outside of prison using surrogates, and Grajeda admitted he had been engaged in narcotics trafficking shortly before the shooting. (See generally People v. Sanchez (2009) 179 Cal.App.4th 1297 [promote/further/assist element satisfied by evidence defendant was direct perpetrator of a felony].)
We conclude substantial evidence supports the jury's finding that Grajeda was an "active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22" within the provisions for elevating of the offense of carrying a loaded firearm in a public place from a misdemeanor to a felony punishable under section 12031, subdivisions (a)(1) and (a)(2)(C).
C. The Gang Enhancement Appended to Count 1
The gang enhancement under section 186.22, subdivision (b), differs from the gang allegation (which incorporated the elements of § 186.22, subd. (a)) in two significant aspects. A person is subject to increased punishment for the gang enhancement under subdivision (b)(1) when the prosecution proves the crime for which the defendant was convicted was committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) The first element of the gang enhancement is thus whether the crime was committed (1) for the benefit of any criminal street gang, or (2) at the direction of any criminal street gang, or (3) in association with any criminal street gang. (§ 186.22, subd. (b)(1).) The second element is whether the defendant committed the crime with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Ibid.) Accordingly, we evaluate whether there was evidence from which a rational jury could have found Grajeda committed the attempted murder alleged in count 1"for the benefit of" his gang, and did so "with the specific intent to promote, further, or assist in any criminal conduct by gang members."
The prosecution did not contend below, and the People do not assert on appeal, that there was evidence from which the jury could have concluded Grajeda committed the attempted murder either "at the direction of" his gang or "in association with" his gang. Accordingly, we limit our analysis to whether there was any evidence to support a finding Grajeda committed the attempted murder "for the benefit of" his gang.
Grajeda correctly notes section 186.22, subdivision (b), does not criminalize mere gang membership (Frank S., supra, 141 Cal.App.4th at p. 1196), and therefore the prosecution's proof of his gang membership at the time of the offense cannot support the enhancement if there is no proof he committed the crime "for the benefit of, " and with the "specific intent to benefit, " his gang. He argues that, apart from the expert's opinions, there is no proof of either element, and under Frank S. and its progeny (see People v. Ramon (2009) 175 Cal.App.4th 843; People v. Ochoa (2009) 179 Cal.App.4th 650), the expert's opinion Grajeda's crime was for the benefit of the Mexican Mafia for purposes of the section 186.22, subdivision (b)(1), enhancement cannot provide substantial evidence to support the jury's determinations.
The Frank S. decision was rooted in that court's earlier decision in People v. Killebrew, supra, 103 Cal.App.4th 644, concerning the proper scope of, and limits on, expert testimony. The court in Killebrew had concluded that, while some subjects are properly matters on which an expert may testify, a court cannot allow experts to express any opinion they may have about gangs and gang activities. (People v. Killebrew, supra, 103 Cal.App.4th at pp. 651, 654.) The defendant in Killebrew was one of several men arrested in connection with a drive-by shooting. He was not inside any of the three cars police suspected were involved, but was standing on a nearby corner when police stopped one of the cars. The discovery of a handgun at a nearby taco stand and in at least one of the cars formed the basis for Killebrew's prosecution for conspiring to possess a handgun. (Id. at pp. 647-649.) The court reversed his conviction on appeal. (Id. at p. 647.) The error identified in Killebrew was that "in response to hypothetical questions, the People's gang expert exceeded the permissible scope of expert testimony by opining on 'the subjective knowledge and intent of each' of the gang members involved in the crime." (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551.) The expert testified that each of the individuals in a caravan of three cars knew there were guns in two of the cars and jointly possessed the guns with everyone else in the three cars for mutual protection. (Id. at p. 1551.) However, "Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator's intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial." (Ibid.)
Cases that have examined Killebrew's limitations on expert opinions have largely been limited to intermediate appellate court opinions. In Frank S., an officer detained the minor for a traffic infraction and discovered a knife, a bindle of methamphetamine, and a red bandana on the minor. The People charged the minor with carrying a concealed dirk with a corresponding gang enhancement, as well as other charges. (Frank S., supra, 141 Cal.App.4th at p. 1195.) The prosecution's gang expert testified the minor was a gang member and that the substantive offense was committed to benefit his gang because "a gang member would use the knife for protection from rival gang members and to assault rival gangs." (Ibid.) The Frank S. court reversed the enhancement true finding because "nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife." (Id. at p. 1199.) The court explained:
It appears the Supreme Court has made only two forays into the Killebrew issues. The first case, People v. Ward (2005) 36 Cal.4th 186, 210, appears to have noted only that the expert opinions at issue fell within the gang culture and habit evidence approved in Gardeley. The second case, People v. Gonzalez (2006) 38 Cal.4th 932, again distinguished the circumstances of the case and rejected the defendant's claim of Killebrew error in the guilt phase, by noting the challenged testimony was "quite typical of the kind of expert testimony regarding gang culture and psychology that a court has discretion to admit." (Gonzalez, at p. 945.) "[W]ithout deciding" whether Killebrew was correct "in this respect, " the Gonzalez court read the case as "merely 'prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.' " (Gonzalez, at p. 946.) The Supreme Court attempted to clarify its comments in dicta included in a footnote: "Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons." (Id. at p. 946, fn. 3.)
"[U]nlike in other cases, the prosecution presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue to establish that possession of the weapon was 'committed for the benefit of, at the direction of, or in association with any criminal street gang....' [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor's statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Ibid.)
Thus, Frank S. concluded something more than an expert witness's unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang is required to provide evidentiary support for a true finding on a gang enhancement. (Accord, People v. Ferraez, supra, 112 Cal.App.4th at p. 931.)
In People v. Ramon, supra, 175 Cal.App.4th 843, the court again concluded the evidence on the specific intent prong of gang enhancement findings was insufficient. In Ramon, police stopped the defendant (a conceded gang member) while he was driving a stolen vehicle, within his gang's territory with a fellow gang member in the passenger seat, and found a loaded, unregistered firearm under the driver's seat. (Id. at pp. 846-848.) The People charged the defendant with receiving a stolen vehicle, possession of a firearm by a felon, possession of a firearm while an active gang member, and carrying a loaded firearm in public for which he was not a registered owner, as well as corresponding gang enhancements. (Id. at p. 848.) At trial, an expert witness testified that one of the gang's primary activities was car theft, and that by driving a stolen vehicle and bearing an unregistered firearm within his gang's territory, the defendant could conduct numerous crimes and simply dump the vehicle and gun thereafter, and both the car and the weapon could be used to spread fear and intimidation within the gang's territory. (Id. at pp. 848-849.) In response to a hypothetical mirroring the facts of the case, the expert concluded the defendant's crimes would benefit his gang, and the jury convicted the defendant of all the substantive counts and found true three of the four gang enhancement allegations. (Ibid.)
The Ramon court vacated the gang enhancements, concluding the only evidence supporting an inference that the defendant committed the instant crimes with the specific intent to promote, further, or assist criminal conduct by gang members was the witness's impermissible speculation, stating "[t]he People's expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding. There were no facts from which the expert could discern whether [the defendant and his compatriot] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]." (People v. Ramon, supra, 175 Cal.App.4th at p. 851.) Thus, Ramon followed Frank S. by requiring that some substantive factual evidentiary basis, apart from an expert witness's opinion, support the requisite elements. (Accord, People v. Ochoa, supra, 179 Cal.App.4th at p. 657 ["A gang expert's testimony alone is insufficient to find an offense gang related. [Citation.] '[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' "].)
We distill from these cases the principle that reversal is required when the gang expert's testimony was the only evidence offered by the prosecution to establish the elements of the enhancement and there is no other evidence from which a reasonable jury could infer intent. "To allow the expert to state the minor's specific intent... without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Frank S., supra, 141 Cal.App.4th at p. 1199.) However, reversal is not required in cases where there is other evidence, apart from and in addition to the expert's opinion, to support an inference the alleged crime was committed for the benefit of the gang and with the requisite intent. For example, in People v. Ferraez, supra, 112 Cal.App.4th 925, the defendant was arrested for possession for sale of rock cocaine and was charged with the drug offense, a gang enhancement appended to that offense, and a section 186.22, subdivision (a), count based on that drug offense. (Ferraez, at pp. 927-928.) The expert testified the sale promoted, assisted or furthered the criminal conduct of the gang, and benefitted the gang, by raising funds that could be used to assist other gang members or to purchase weapons for the gang. The defendant claimed he was selling the drugs for personal reasons and had been given permission to sell within the gang territory. (Id. at pp. 928-929.) Upholding the sufficiency of the evidence, the court concluded that "[u]ndoubtedly, the expert's testimony alone would not have been sufficient to find the drug offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related." (Id. at p. 931.)
In this case, the experts testified at length on how the attempted murder could have been for the benefit of Grajeda's gang: it could elevate his status within the gang by showing he was willing to commit violent assaults, and could benefit the gang's ability to maintain control over the community by instilling fear of violent retribution if gang members were "disrespected." However, there was no "other evidence" the motive of the shooting was to benefit the gang. There was no evidence Grajeda was in the company of other gang members, issued gang signs or uttered gang words, was targeting a rival gang member, was clad in gang clothing, or later bragged or publicized his exploits. In his interactions with Hameed before the shooting, there was no suggestion Grajeda (by words, deeds, symbolic displays, or otherwise) even revealed to Hameed that he was a gang member to whom deference was owed, nor was there any analogous suggestion by Grajeda that Hameed's presence during the telephone bill incident was an affront to Grajeda or his gang.
There is no evidence Grajeda was not "on a frolic and detour unrelated to the gang" (People v. Morales (2003) 112 Cal.App.4th 1176, 1198) when he confronted Hameed, and indeed, "[i]n the final analysis, the only evidence to support the respect motive is the fact of [Grajeda's] gang affiliation." (People v. Albarran, supra, 149 Cal.App.4th at p. 227.) We conclude there is no evidence (apart from the gang expert's opinion) from which the jury could have found Grajeda's attempt to murder was done for the benefit of, and with the specific intent to benefit, the Mexican Mafia, within the meaning of the section 186.22, subdivision (b)(1), enhancement, and we therefore reverse the true finding on the enhancement appended to count 1.
D. Conclusion
We affirm the verdict insofar as the jury found true the gang allegation appended to count 2, but reverse the true finding on the enhancement appended to count 1.
I
SENTENCING CLAIMS
Grajeda raises a series of sentencing claims on appeal. He asserts the court abused its discretion by not dismissing his prior strike allegations, the court's use of his prior felony convictions from former cases to impose a three strikes sentence violated the terms of Grajeda's plea bargains in the former cases, the court did not provide proper presentence credits under section 4019, and the court erred by imposing a restitution fine without considering Grajeda's ability to pay that fine. Because the court selected count 1 (with its enhanced term based on the § 186.22, subd. (b), true finding) as the principal term, and we have reversed the true finding on which that sentence was premised, we remand the matter for resentencing. Because Grajeda may raise his claims at the new sentencing hearing, and some or all of these sentencing claims may be remedied and/or rendered moot depending on the sentencing choices made by the court on remand, we decline to consider Grajeda's challenges to the sentence at this time.
DISPOSITION
The true finding on the gang enhancement under section 186.22, subdivision (b), as appended to count 1 is reversed; in all other respects, the judgment of convictions and related true findings is affirmed. The sentence is vacated and the matter is remanded for resentencing. The petition for habeas corpus is denied.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.